Ind. Decisions - Transfer list for week ending April 12, 2012

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the Feb. 24, 2012 list.]

The Supreme Court has set oral argument for Thursday, May 10, 2012 at 9:00 AM in Virginia Garwood and Kristin Garwood v. Indiana Department of State Revenue, a case where the Court on March 16th granted a petition for review of a Tax Court decision by Judge Wentworth. See this long list of earlier ILB entries, the most recent, from Aug. 25, 2011, headed "Court rules state overstepped by taking dogs to recoup taxes."

A three-judge appellate panel unanimously sided with McReynolds on Feb. 24. Judge Richard Posner, who wrote the opinion, said challenging the Merrill policies in a class action was not forbidden by the Wal-Mart case.

According to Posner, "permitting brokers to form their own teams and prescribing criteria for account distributions that favor the already successful — those who may owe their success to having been invited to join a successful or promising team — are practices of Merrill Lynch, rather than practices that local managers can choose or not at their whim."

The trial court erred in denying Whiskey Barrel’s motion for partial summary judgment on Counts III and VII. The trial court also erred in determining that Ralph and Ann’s personal property was transferred to AGW under the Agreement and that the property had been abandoned by them. Finally, the record is insufficient to determine whether the trial court properly exercised its discretion in determining the amount of the attorney fee award and costs to AGW.

Reversed and remanded for further proceedings consistent with this opinion.

Stage Collapse - "The Indiana State Fair Stage Collapse: The Two Recommendations That Matter"

From a Houston Chronicle blog, Climate Abyss (Weather and climate issues with John Nielsen-Gammon, who is the Texas State Climatologist and a Professor of Atmospheric Sciences at Texas A&M University), this post on April 12, 2012, following the release of the two engineering reports last week. A few quotes:

The news coverage I’ve seen so far completely misses one of the two key issues. Prominently featured, and a key element of the collapse, is the fact that the stage rigging, with all the concert equipment attached to it, could not withstand winds of 20-40 mph. The structure began collapsing when winds exceeded 33 mph, and wind gusts eventually maxed out at 59 mph. So the no-brainer recommendation (#1) is: build robust structures during severe weather season, even if they’re only temporary, if their collapse would be catastrophic. * * *

[T]he other recommendation that matters, here quoted verbatim from the Witt report: "The Indiana State Fair Commission should deploy a private weather forecasting service during the State Fair."

This applies, not just to Indiana, but to all events that involve potential exposure of large numbers of people to the consequences of severe weather. Private meteorologists can take the observations and general warning information provided by the NWS and match it up with the potential failure points and vulnerabilities of the event. While the NWS is worrying about severe weather across numerous counties, the private meteorologist can focus on one specific location and the specific types of severe weather that could cause problems. In turn, the event operators must define the weather criteria for taking action and then not relax those criteria when economic issues intervene. Are you listening, event operators?

Ind. Gov't. - Underneath the $526 million error "are hundreds of thousands of individual financial transactions and decades of statutes and politics."

Here are stories updating the April 12th ILB entry headed "Tomorrow is first meeting this year of State Budget Committee ...."

Underneath the $526 million error "are hundreds of thousands of individual financial transactions and decades of statutes and politics." So writes Tom LoBianco of the AP in a good story today, here in the Indianapolis Star. See also this story by LoBianco here in the April 14th Fort Wayne Journal Gazette. The two stories together give a good overview of the issues.

From a $$ story in the Bloomington Herald-Times this weekend by Dawn Hewitt:

State Rep. Peggy Welch, D-Bloomington, met with the State Budget Committee Friday in Madison. Welch serves as an alternate member on the committee.

Two items on the agenda for discussion were the report following an internal review of the December discovery of a $320 million accounting error in the Indiana Department of Revenue, and the discovery of a programming error that inappropriately withheld $205 million in local option income tax funds from counties, announced last week.

Democrats on the budget committee in December had called for an external review of the “found” $320 million, but the motion failed.

“There were some there who thought there would be a lot of defensiveness coming from the state budget agency and Republican members of the budget committee,” Welch said, but that was not the case.

“It was a very congenial and warm discussion. There was no defensiveness, but, like, ‘we’ve got to fix this,’ and ‘how are we going to do this?’” she said.

The budget committee passed a motion calling for an external review of the two Department of Revenue problems.

“Everyone was on the same page that we need an external audit,” Welch said by telephone Friday.

“We strongly recommend that the State Budget Agency determine the parameters of the external review or audit,” she said, adding that she hopes members of the Legislature and their staff will be included in the process.

She said the State Budget Committee, which usually meets every two months, will convene again in May to hear the recommendations of the State Budget Agency and legislative staff on moving forward with an external audit.

“It’s important to get this done as soon as possible,” Welch said, since revenue forecasting will start in the fall.

See also this special to the Indianapolis Star from reporter Lesley Weidenbener. Some quotes:

A key figure in the Daniels administration said that ongoing examination is likely to turn up additional problems.

"There are indications there could be other areas" with mistakes, said Adam Horst, director of the Office of Management and Budget, which oversees the revenue department. "But it's too soon to know for sure yet. It's important we wait until the end to see what the results are."

The State Board of Accounts began reviewing the state income tax transactions after Daniels announced in December that a programming error had left $320 million in corporate income taxes sitting unused in an account. State examiners are now working to reconcile what Hoosiers and businesses have paid into the Department of Revenue over the past decade with what's been distributed to state and local governments.

The work could take weeks or months to finish, Horst said.

Then Horst announced a second major error last week. He acknowledged the state had shorted local governments $206 million in income tax payments over 14 months. That discovery led Daniels and GOP leaders to call for an outside audit, something Democrats had been pushing for months.

On Friday, the State Budget Committee -- a five-member group that includes Horst and four legislative fiscal leaders -- took the first steps toward that audit. The group asked Horst to begin collecting information from companies interested in conducting the audit and then bring the information back to the committee in May, where members hope to hire a company for the job.

"Legislative leaders have come around to the idea of an independent audit, but we need to make it a reality before the next budget cycle," said Sen. Karen Tallian, D-Portgage, said after the meeting. "This isn't money between the cushions. We're talking about over a half billion dollars in mishandled taxpayer money."

Lawmakers said they want the audit to include a look at the Department of Revenue's information technology work as well as its operations. Rep. Bill Crawford of Indianapolis, the ranking Democrat on the House Ways and Means Committee, said the audit needs to be thorough and take place soon.

"There could be mistakes occurring right now that have consequences," Crawford said. "We agree that this was not intentional. But the consequences -- whether this was intentional or unintentional -- are severe and we need to know what's happening."

Fiscal leaders said they also want to consider whether the state should implement systems for other types of regular internal and external audits. Currently, the State Board of Accounts conducts only financial audits. It does not consider operational, programming, compliance or efficiency issues, said state examiner Bruce Hartman.

Updating earlier ILB entries, including this one linking to the complaint, the Indianapolis Star editorial today is headed "Give outsiders what insiders have." Some quotes:

Political parties have the right to anoint favored candidates in primary elections, even if the voting public has the right to feel unfairly limited in its choices.

Where the prerogative ends is where slated candidates enjoy an advantage courtesy of the public.

That is the heart of a matter involving five unslated candidates for office who are asking the Marion Circuit Court to grant them access to the county's voter registration database.

The candidates -- three for judgeships and two for state representative, one Republican and four Democrats -- contend that the Marion County Voter Registration Board has dragged its feet on their request for access because it is beholden to the parties, which appoint board members.

Time is of the essence for using the database to target likely voters for the May 8 primary. Slated candidates already have the data through their parties, which don't share with others.

The unslated candidates point out that the database is a public record compiled at taxpayer expense. The state Public Access Counselor has informally sided with them, but has advised that the Marion County Election Board adopt a policy ordering the registration board to act.

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 4/16/12):

Friday, April 20th

9:30 AM - Michael J. Lock v. State of Indiana (35S04-1110-CR-622) - Police stopped Michael Lock while he was operating a Yamaha Zuma at forty-three miles per hour. In the Huntington Circuit Court, Lock was convicted of operating a “motor vehicle” while his driving privileges were suspended. The Court of Appeals reversed on grounds the State failed to prove that the Zuma was a motor vehicle as defined in Indiana Code sections 9-13-2-105 and 109. Lock v. State, 952 N.E.2d 280 Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [Note: Argument will be held in the Gathertorium located in the main building on the campus of Martin University, which is located at 2171 N Avondale Place, Indianapolis, IN 46218. No webcast. Note that this will be the first oral argument with Justice Massa on the Court.]

ILB: This was a 2-1, July 26, 2011 COA opinion where the majority wrote: "Lock argues the State did not prove he operated a motor vehicle, because his Zuma is a motorized bicycle, which, pursuant to Ind. Code § 9-13-2-105(d), is exempt from the provisions of the statutes regarding operation of a motor vehicle while privileges are suspended. We agree the State did not prove the Zuma was a motor vehicle; however, neither does the record before us permit us to hold the Zuma is a motorized bicycle. * * * We decline the State's invitation to relieve it of its burden to prove every element of a crime it prosecutes."

Next week's oral arguments before the Supreme Court (week of 4/23/12):

This week's oral arguments before the Court of Appeals (week of 4/16/12):

Monday, April 16th

2:00 PM - Jason Michael Palilonis v. State of Indiana (42A05-1104-CR-197) - Jason Palilonis was convicted of Class B felony rape for raping a fellow Vincennes University student after a night of partying. A year after the incident, the victim, B.S., committed suicide. At trial, statements Palilonis made to the police, statements B.S. made to the nurse during her sexual-assault examination, and evidence of B.S.’s death were admitted into evidence over Palilonis’s objections. Testimony from a nurse vouching for the credibility of B.S.’s statements about the rape was also admitted, but without objection from Palilonis. The jury found Palilonis guilty, but days later a juror alleged juror misconduct, specifically that the foreperson told the jury the judge thought Palilonis was guilty. Evidentiary hearings were held and the trial court found that no misconduct occurred.
On appeal, Palilonis contends that the trial court abused its discretion by: (1) denying his motion to set aside the verdict and correct errors based on alleged juror misconduct; (2) allowing the jury to be informed that B.S. was unavailable because she was deceased; (3) admitting statements made by B.S. during her sexual-assault examination; (4) admitting the vouching statements made by the nurse; and (5) admitting the statements he made during his police interview. He also contends that the evidence is insufficient to convict him of Class B felony rape
The Scheduled Panel Members are: Judges Vaidik, Mathias and Barnes.
[Where: Valparaiso University, Tabor Classroom
Wesemann Hall School of Law
656 S. Greenwich Street
Valparaiso]

Tuesday, April 17th

2:20 PM - Duane T. Lee v. State of Indiana (49A04-1105-CR-225) - Duane Lee was arrested when he was seventeen years old on suspicion of involvement in a burglary and rape shortly after the incident occurred. At the police station in the early hours of the morning, Lee was not very alert. Lee’s mother, who had come to the police station, consented to DNA swabs being taken from Lee’s person. Lee was charged in adult court with fourteen counts, including Class A felony rape, Class B felony burglary, and seven counts of Class A felony criminal deviate conduct. The DNA evidence was introduced at trial without objection by Lee. A jury found him guilty of all charges but for one count of criminal deviate conduct. Lee appeals his convictions, contending the trial court committed fundamental error in admitting the DNA evidence because his constitutional rights were violated when the police obtained the DNA evidence by consent of his mother without meaningful consultation between Lee and his mother first, and without Lee joining knowingly and voluntarily in the waiver of his rights.
The Scheduled Panel Members are: Chief Judge Robb, Judges Riley and Crone.
[Where: Walden Inn and Conference Center
DePauw University
Greencastle, Indiana ]

3:00 PM - William Pargo v. State of indiana (49A05-1104-CR-174) - William Pargo was charged with conspiracy to deal cocaine. After the State made numerous amendments to the charging information, Pargo petitioned for and was granted an interlocutory appeal. He argues the amended information stated nearly countless possible allegations, so he did not have fair notice of the charges against him and could not be fairly tried by a jury.
The Scheduled Panel Members are: Judges Judges Kirsch, May and Bradford.
[Where: Morgan County Courthouse
Superior Court 3
2nd Floor, Courthouse Square
10 E. Washington Street
Martinsville, Indiana ]

Thursday, April 19th

1:30 PM - William Carter v. R. Hilliard, et al (49A02-1106-PL-582) - William T. Carter, derivatively on behalf of CNO Financial Group, Inc. (“CNO”), filed a complaint against current and former members of the board of directors and officers of CNO (collectively "Defendants") alleging in part breach of fiduciary and good faith duties. Defendants filed a motion to dismiss the amended complaint on the ground that Carter had failed to make a showing that pre-suit demand on CNO’s Board of Directors was futile. Because CNO was incorporated in Delaware, that state’s law applies. At issue on appeal is the proper demand futility standard to be applied, which in turn depends on the applicability of the exculpatory clause in the charter of incorporation and whether the trial court correctly concluded that the amended complaint asserted oversight claims.
The Scheduled Panel Members are: Chief Judge Robb, Judges Najam and Vaidik.
[Where: Court of Appeals Courtroom (Webcast)]

Next week's oral arguments before the Court of Appeals (week of 4/23/12):

11:00 AM - Mark Gasser v. Lesa B. Downing, et al (19A05-1108-PL-419) - Mark Gasser was scheduled to meet friends to play golf. Because the battery was dead in his pickup truck, Gasser asked another golfer to pick him up. On their way to the golf course, the car was involved in a collision and Gasser was injured. Gasser sought coverage under his Auto-Owners Insurance Company policy, which applies when someone else’s vehicle is temporarily used as a substitute for the insured auto. Auto-Owners denied coverage, and Gasser appeals from the trial court’s grant of summary judgment to Auto-Owners.
The Scheduled Panel Members are: Judges Baker, Bailey and May.
[Where: Marian University, 3200 Cold Springs Road, Indianapolis]

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.